Schreiber v. Cuccinelli, No. 18-3215

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: HOLMES, Circuit Judge.
• Citation: 981 F.3d 766
• Parties: Lt. Col. Patrick SCHREIBER, Plaintiff - Appellant, v. Kenneth T. CUCCINELLI, Acting Director, U.S. Citizenship and Immigration Services; David Douglas, District Director, U.S. Citizenship and Immigration Services; Chad F. Wolf, Acting Secretary, U.S. Department of Homeland Security; William Barr, Attorney General, the U.S. Department of Justice, Defendants - Appellees, Children and Family Law Center; Adoptee Rights Campaign, Amici Curiae.
• Docket Number: No. 18-3215
• Decision Date: 24 November 2020

981 F.3d 766

Lt. Col. Patrick SCHREIBER, Plaintiff - Appellant,
v.
Kenneth T. CUCCINELLI, Acting Director, U.S. Citizenship and Immigration Services; David Douglas, District Director, U.S. Citizenship and Immigration Services; Chad F. Wolf, Acting Secretary, U.S. Department of Homeland Security; William Barr, Attorney General, the U.S. Department of Justice,^* Defendants - Appellees,

Children and Family Law Center; Adoptee Rights Campaign, Amici Curiae.

No. 18-3215

United States Court of Appeals, Tenth Circuit.

FILED November 24, 2020

Robert D. Friedman, Institute for Constitutional Advocacy and Protection (Rekha Sharma-Crawford, Sharma-Crawford, Attorneys at Law, LLC; Joshua A. Geltzer, Institute for Constitutional Advocacy and Protection, with him on the briefs), Washington, D.C., for Plaintiff-Appellant.

T. Monique Peoples, Senior Litigation Counsel, U.S. Department of Justice, Office of Immigration Litigation (Joseph H. Hunt, Assistant Attorney General, U.S. Department of Justice; William C. Peachey, Director, Office of Immigration Litigation; Elianis N. Perez, Assistant Director, Office of Immigration Litigation, with her on the brief), Washington, D.C., for Defendants-Appellees.

Before TYMKOVICH, Chief Judge, BALDOCK, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

981 F.3d 769

This case presents the issue of whether a father's adopted child can qualify as his "legitimated" child for purposes of § 101(b)(1)(C) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1101(b)(1)(C), when the child is not his biological child. The Act provides, in relevant part, that "an unmarried person under twenty-one years of age" qualifies as a "legitimated" child if she is "legitimated under the law of [her] residence or domicile, or under the law of [her] father's residence or domicile," and if "[her] legitimation takes place before [she] reaches the age of eighteen years." 8 U.S.C. § 1101(b)(1)(C). The parties agree that the Act looks to state law to determine how a parent may legitimate an eligible child (that is to say, for the legal procedures through which legitimation may be effected). But they disagree over whether the Act also looks to state law to define whom (i.e., which children) a parent may legitimate.

Accordingly, we must now decide whether the Board of Immigration Appeals ("BIA")—that is, the federal agency charged with ultimately interpreting the Act—erred in ruling that, because it is implicit in the concept of legitimation that a parent may legitimate only his biological children, the Act need not and does not look to state law to see whether parents may legitimate someone other than their biological children. Like the district court, we determine that the BIA correctly interpreted the Act's plain meaning and, thus, did not err in ruling that a parent's non -biological child may not be his "legitimated" child within the meaning of the Act. We also hold that the district court did not violate the Supreme Court's rule in Darby v. Cisneros , 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993), when it declined to entertain the gender-discrimination challenge of plaintiff-appellant Lieutenant Colonel Patrick Schreiber ("Mr. Schreiber") to the BIA's interpretation of the Act because he failed to exhaust this argument in his purportedly optional appeal to the BIA. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the judgment below.

I

A

We begin by outlining in more detail the legal contours of the dispute and our resolution of it. When Mr. Schreiber asked the U.S. Citizenship and Immigration Services ("USCIS") to classify his adopted daughter, Hyebin, as his "child" for purposes of § 101(b)(1) of the Act to start her on the path to obtaining lawful permanent residency, the USCIS notified him that it planned to deny his I-130 petition.¹ The USCIS explained that Hyebin did not qualify under the Act as his "adopted" child because the Act limited that category to children "adopted while under the age of sixteen years," see 8 U.S.C. § 1101(b)(1)(E)(i), whereas Mr. Schreiber had adopted her when she was seventeen years old. Mr. Schreiber replied that Hyebin instead was his "legitimated" child, asserting in support that (1) Kansas law considers an adopted child to be "legitimated," and (2) the Act defines the term "child" to include "a child legitimated under the law of the child's [or the father's] residence or domicile, ... if such legitimation takes place before the child reaches

981 F.3d 770

the age of eighteen years ." Id. § 1101(b)(1)(C) (emphasis added).

The USCIS and later the BIA rejected Mr. Schreiber's position on the ground that Hyebin could not be his "legitimated" child under the Act because she was not his biological child. In pursuing judicial review of the BIA's final agency action in federal district court, Mr. Schreiber raised for the first time a gender-discrimination challenge to the BIA's interpretation of the statutory term "legitimated." The district court held that the BIA had correctly interpreted the term's unambiguous meaning and declined to consider Mr. Schreiber's gender-discrimination challenge because he had failed to raise it in his purportedly optional administrative appeal to the BIA. Mr. Schreiber timely appeals from the district court's judgment, which upheld the BIA's rejection of his I-130 petition.

We agree with the district court that when the Act speaks of a "legitimated" child in 8 U.S.C. § 1101(b)(1)(C), Congress unambiguously meant a child who is the biological child of her legitimating parent. We further conclude that the district court properly declined to review Mr. Schreiber's late-blooming gender-discrimination challenge to the BIA's final agency action. Therefore, we affirm the district court's judgment.

B

Mr. Schreiber and his wife are United States citizens and Kansas residents. In 2012, Hyebin, who is the niece of Mr. Schreiber's wife, moved from her native South Korea to Kansas in order to live with the Schreibers and attend high school. In 2014, the Schreibers adopted Hyebin under Kansas law with the consent of her biological parents. She was seventeen years old. The Kansas adoption decree stated that Hyebin "is hereby the child and heir-at-law" of the Schreibers, who "are entitled to exercise any and all rights of parents of [Hyebin] and are subject to all of the liabilities of that relationship." Aplt.’s App. at 207 (Decree of Adoption, dated Nov. 17, 2014). Kansas issued Hyebin a new birth certificate listing the Schreibers as her parents. No one before us doubts the authenticity of the familial bond that Hyebin shares with her parents.

In 2015, Mr. Schreiber filed an I-130 petition with the USCIS, seeking to have Hyebin classified as his "child" for purposes of 8 U.S.C. § 1101(b)(1) and stating that he was related to her "by adoption." Id. at 194 (I-130 Pet., filed Apr. 14, 2015). Mr. Schreiber filed the petition with the assistance of counsel, who attached a legal memorandum contending that Hyebin was Mr. Schreiber's "legitimated" child because (1) she was "born out of [the Schreibers’] wedlock" and was now "fully and lawfully" his child, and (2) the State of Kansas had "erase[d] any legal distinctions between natural children and legitimized children." Id. at 183 (Mem. of Law in Supp. of I-130 Pet., dated Apr. 13, 2015). The USCIS responded by sending Mr. Schreiber a "Notice of Intent to Deny," informing him that "because [Hyebin] was sixteen years or older at the time of adoption, it would appear that [she] cannot be classified as [his] adopted child for immigration purposes." Id. at 173 (Notice of Intent to Deny, dated Nov. 10, 2015). Mr. Schreiber reminded the USCIS by letter that he was petitioning to have Hyebin declared his "child" based solely on "the theory" that she "should and would be considered a legitimated child under the [Act]." Id. at 178 (Pet'r’s Letter to USCIS, dated Nov. 23, 2015). He did not raise before the USCIS the argument that the U.S. Constitution required the government to interpret the Act in a manner that

981 F.3d 771

deemed Hyebin to be his "legitimated" child.

The USCIS denied Mr. Schreiber's petition on the basis that Hyebin was neither his "adopted" child nor his "legitimated" child, for purposes of "section 101(b)(1) of the Act," i.e., 8 U.S.C. § 1101(b)(1). Id. at 171 (USCIS Decision, dated June 10, 2016). The USCIS determined that Hyebin could not "qualify as [Mr. Schreiber's] legitimated child" under § 1101(b)(1)(C) because Mr. Schreiber was "not [her] natural father." Id.

Mr. Schreiber appealed from the USCIS's decision to the BIA. He conceded that the BIA had been clear in In re Bueno-Almonte ("Bueno "), 21 I. & N. Dec. 1029 (BIA 1997), that the very concept of legitimation implies that only a child's natural (i.e., biological) parent can legitimate her. Mr. Schreiber nonetheless argued that, for immigration purposes, Hyebin qualified as his "legitimated" child because (1) the Act "g[ave] total deference to State law to determine whether or not [a] child is considered ‘legitimated,’ " and (2) "Kansas law authorizes adoption as a method of legitimation." Id. at 88, 91 (Br. in Supp. of Appeal, dated July 25, 2016). Mr. Schreiber also...